RE CALUZA VICKY BALONG AND ANOTHER

CACV 159/2023, [2024] HKCA 323

On Appeal From [2023] HKCFI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2023

(ON APPEAL FROM HCAL 516 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal by the 1^st applicant against the decision of Deputy High Court Judge To (“the Judge”) dated 17 May 2023 refusing leave to the applicants to apply for judicial review. The intended judicial review was on the face of the Form 86 dated 22 February 2019 against the decision of the Director of Immigration (“the Director”) dated 8 February 2019. Upon clarification by the Judge, the intention of the applicants was really to seek judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 February 2019 (“the Board’s Decision”) dismissing the applicants’ appeal against the decision of the Director dated 6 July 2018 (“the Director’s Decision”) rejecting the applicants’ non-refoulement claim.

2.  The 2^nd applicant is a minor (born in Hong Kong in July 2017) and is the daughter of the 1^st applicant. They were joint applicants for non-refoulement protection before the Director, and had both pursued appeals against the Director’s Decision before the Board. Thereafter, by the Form 86, they both sought leave to apply for judicial review of the Board’s Decision. On 25 May 2023, both applicants filed a Notice of Appeal against the Judge’s decision dated 17 May 2023.

3.  By the 1^st applicant’s confirmation by letter dated 30 November 2023 that the 2^nd applicant would abandon her appeal and the order made by Kwan VP on 5 December 2023, the appeal of the 2^nd applicant was dismissed.

4.  Accordingly, there remains for this court’s determination only the 1^st applicant’s appeal against the Judge’s decision dated 17 May 2023.

Background

5.  The 1^st applicant is a national of the Philippines. She last entered Hong Kong on 10 September 2016 as a foreign domestic helper. She overstayed after the premature termination of her employment on 15 December 2016 and surrendered to the Immigration Department on 16 February 2017. She thereafter raised a non-refoulement claim by way of written submissions dated 31 July and 23 October 2017.

6.  In gist, the 1^st applicant’s claim was based on her fear that she would be ill-treated or killed by her husband in the Philippines because of her relationship with another man and having given birth to the 2^nd applicant. The details of the 1^st applicant’s case have been summarised by the Judge at [7] to [9] of the Judge’s decision (“the CALL-1 Form”)[1].

7.  The 1^st applicant’s claim was assessed on all applicable grounds. By a Notice of Decision dated 6 July 2018 i.e. the Director’s Decision, the Director decided against the 1^st applicant. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

8.  The 1^st applicant appealed against the Director’s Decision to the Board in respect of which an oral hearing was held on 14 December 2018 and at which the 1^st applicant appeared in person. The Board found on the facts inter alia that the 1^st applicant’s husband had no intention to actually carry out the threats of harm made towards her or the 2^nd applicant if they returned to the Philippines. In any event, the Board found adequate state protection and suitable options of internal relocation to other places such as Manila, Cebu and Davao City to avoid the risk of harm from her husband were available. The 1^st applicant’s appeal was dismissed by the Board on 8 February 2019 i.e. the Board’s Decision.

The Judge’s decision

9.  The 1^st applicant filed a Form 86 on 22 February 2019 seeking leave to judicially review the Board’s Decision but did not set out any grounds for review.

10.  In her supporting affidavit filed on the same date, the 1^st applicant deposed that she “would like to reject and review [the Director’s Decision]… They disregard [sic] my dangerous situation”.

11.  After summarising the facts and background of the case and giving due consideration to the Decision of the Board, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [17] of the CALL-1 Form:

“15. This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker, save where such finding is the result of errors of law, procedural unfairness or irrationality.

16. The Court noted that the Board did not seem to have assessed the 2^nd Applicant’s claim separately from the 1^st Applicant’s. The two Applicants’ claim arose from the same factual matrix, ie the 1^st Applicant's extra marital relationship and the birth of the 2^nd Applicant outside of wedlock. The factual basis of their claim is entirely the same. The source of feared harm is the same, ie the 1^st Applicant’s husband. The nature of the feared harm from the 1^st Applicant’s husband is the same, ie physical violence and death. The Applicants have not advanced any child-specific basis of claim specific to the 2^nd Applicant. The 2^nd Applicant’s feared harm is therefore solely hinged on the 1^st Applicant’s. Hence, there is no need for the Board to artificially considered the claim of the 2^nd Applicant separately from the 1^st Applicants’.

17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Applicants did not advance any reasons or argument as to what is wrong with the Decision. The Board’s finding that the Applicants are not entitled to protection is a mixed question of fact and law. Insofar as the finding of fact is concerned, the Applicants cannot complain about the Board’s primary finding of fact as the Board accepted their evidence in total and assessed their claim on the basis of their case as they asserted. But even on that evidence, it found they had failed to prove the factual basis to support of their case. This is a secondary finding of fact based on the Applicants’ own evidence as they asserted which the Court in a judicial review will not interfere, save where such finding is the result of errors of law, procedural unfairness or irrationality. Insofar as application of the law to the fact is concerned, the Court could not identify any errors of law in the Decision or procedural unfairness. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

Grounds for appeal

12.  In the Notice of Appeal filed on 25 May 2023, the 1^st applicant stated that the Judge had failed to consider the fact raised in her claim that she was scared and would face discrimination upon refoulement. She also claimed that there was a failure (without identifying the party guilty of such alleged failure) to consider the Country of Origin Information that the authorities in the Philippines would not be able to protect her.

13.  In her skeleton submissions dated 25 July 2023, the 1^st applicant contended inter alia that the Board and the Director had failed to take into account of or to give proper weight to relevant considerations and had taken into account irrelevant considerations. She also submitted the Judge’s support of the Board’s Decision was improper because “the high standard fairness for provide (sic) opportunity for my claim” was not followed. Lastly, she submitted that the Judge “did not focus my fear for which my life would be at danger.”

14.  We heard the appeal on 9 April 2024. The 1^st applicant appeared at the hearing but had nothing further to add.

Discussion

15.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  As can be seen from the above, save for a few bare assertions, the 1^st applicant has failed to identify with particulars in her Notice of Appeal and skeleton submissions any error on the part of the Judge and thus failed to raise any viable ground of appeal. It is necessary for the 1^st applicant to identify some error on the part of the Judge that would justify this court in intervening. The 1^st applicant has wholly failed to do so. On this basis alone, her appeal must fail.

18.  In any event, in her application to the Judge, apart from a bare assertion that the decision-maker had disregarded her dangerous situation, the 1^st applicant had failed to provide particulars as to any respects in which the Board was acting illegally or unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established: See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

20.  There is therefore no merit in the appeal and we dismiss it accordingly.